This essay examines the post-divorce claims available to Muslim couples in Malaysia. It focuses primarily on the Islamic Family Law Act 1984 (IFLA), which applies to the Federal Territories (Kuala Lumpur, Putrajaya, and Labuan), though similar provisions exist throughout Malaysia’s states. Understanding these claims is essential for couples contemplating divorce because, as we shall see, not all possible claims arising from the divorce are claimable in the Syariah courts.

I first discuss the wife’s claims, followed by the husband’s. This essay does not discuss the divorce application, but the claims that will likely follow.

I assume the following facts to discuss these claims: The husband (H) works, and the wife (W) stays at home. They have two children (a 2-year-old boy [2B] and a 4-year-old girl [4G]) (2C). They have three landed properties: the matrimonial home and one apartment in joint names, with another apartment in the husband’s name alone. The wife contributed financially to the apartment in joint names. The husband has shares in the stock market and both their cars, one BMW 318i and one Honda CRV, registered in his name. On three occasions, W had to pay for the education fees and clothes for the children from her savings because H didn’t pay her maintenance.

Irreconcilable differences, W wants custody of 2C and H has been paying nafkah (maintenance) regularly throughout the marriage until the last seven months.

Caveat: Whatever follows is not legal advice. This is a general guide to give an idea about the kind of claims that commonly arise in a divorce. You should, at the minimum, consult a licensed Syariah practitioner that you trust before undertaking claims in the Syariah court.

The Wife’s Claims

On the facts above, she will have potentially five claims.

First, a claim for nafkah, maintenance.

Second, a claim for maintenance and custody of the children.

Third, a claim for mu’tah, or consolatory gift.

Fourth, a claim for harta sepencarian, property acquired during marriage.

Fifth, claims for reimbursement of payments payable by the father.

The Claim for Maintenance

W has two claims for maintenance.

The first is maintenance for the iddah period (3 months starting from the date of divorce). The amount for the nafkah iddah is the same amount H regularly gave W as nafkah during the marriage. Thereafter the former wife does not have a right to receive maintenance: section 65(1) IFLA. This is unlike the non-Muslim maintenance post divorce which lasts until the former wife remarries or is in a relationship, or dies.

The second is nafkah tunggak or outstanding maintenance. There is an implied statutory duty on a husband to pay maintenance to his wife during the marriage: section 59(1) IFLA. W may claim for outstanding maintenance, which can be recovered as a debt: section 69(1) IFLA.

On the above facts, H neglected to pay W maintenance for 7 months leading up to the divorce. That is claimable as nafkah tunggak.

The Claim for Custody and Care of Children

W is claiming for custody of 2C. She would do so under section 86(1) IFLA.

She is likely to get it because the mother has a right to custody of a boy until the age of seven and the girl until the age of nine, which can be extended by the court, to extend it for a further two years for both of them, i.e., boy, nine, and girl, eleven: section 84(1) IFLA.

Thereafter, after ‘termination of the right of the hadhinah [wife], the custody devolves upon the father…‘: section 84(2) IFLA. It sounds fair, but the father’s custodial right is illusory because, according to the Shafie school of thought, which Malaysia follows, when the boy is nine and the girl eleven, they are the age of mumaiyiz, the age of discernment, and can choose which parent they want to stay with. The court generally follows their preference.

The mother loses her right of custody in five circumstances: section 83(1) IFLA.

First, she is found to be gross and openly immoral.

Second, she renounces Islam.

Third, she neglects or is cruel to her child.

Fourth, she changes residence to prevent the husband from ‘exercising the necessary supervision over the child’.

Fifth, she marries someone not closely related to the child (like a stepfather with no blood relation to the child). This only happens if the court determines that the new marriage is likely to affect the child’s well-being negatively.

Even though the mother has custody, it does not mean the father has no rights over the children. A father has the right to visits, sleep-overs, festive and family occasions and holidays. The courts always grant these to maintain and encourage the parent-child relationship (silaturrahim). It has the power to do so when making a custody order: section 87(2)(d) IFLA.

The law presumes that mothers are ‘of all persons the best entitled to the custody of her infant children‘ both during marriage and after divorce (section 81(1) IFLA). Nevertheless, if custody might be contested, it is prudent for W to obtain a formal court order that clearly establishes her rights. Practically speaking, if W gets a custody order, it will continue to last until 2C want a different arrangement.

Children’s Maintenance

A father is generally legally obligated to provide his children with accommodation, clothing, food, medical attention, and education, or the cost of it, whether or not they are in his custody. The amount the court orders depends on the children’s needs and the father’s means and station in life: section 72(1) IFLA. A syariah court order may vary that obligation. If he does not pay, a court order ordering him to do so can be obtained: section 73(1) IFLA.

W would claim for the children’s maintenance on their behalf.

The Claim for Mut’ah or Consolatory Gift

The Shafie school considers mut’ah obligatory on a husband divorcing his wife. This claim is recognised in law under section 56 IFLA.

The amount is ‘such sum as may be fair and just according to Hukum Syarak‘ after the court is satisfied that ‘the woman has been divorced without just cause.’ That means she was not divorced based on an issue of immorality on her part, or she renounced Islam.

The main considerations are the husband’s financial capability to pay at the time of the divorce, primarily based on his income and the sacrifice and contribution of the wife and her pedigree.

The Claim for Harta Sepencarian

Harta sepencarian are assets acquired during the marriage. There are two types of harta sepencarian assets claimable.

First, those acquired by the couple’s joint efforts. The court will consider the extent of contributions made by each in terms of money, property or labour, any debts taken on by one for their joint benefit and the need of any minor children. Subject to those considerations, the court ‘shall incline towards equality of division.‘: section 122(1) and (2) IFLA.

Second, those acquired by ‘the sole efforts of one party to the marriage‘. In dividing such acquired property, the court shall consider the extent of the wife’s contribution to looking after the home or caring for the family. For such property, the court shall make a reasonable division but the husband that acquired the property should have the greater share. IFLA does not say how much.

Both spouses can claim harta sepencarian. Assets include landed property and movable property such as cars, shares, and valuable items.

Given the facts, H and W do not have to do anything when they are joint owners. That is unless one of them wants to claim a portion of the other half’s share. However, W may consider a claim against H for the apartment in his sole name, shares and cars.

Claims for reimbursement of payments payable by the father

As mentioned earlier, the father’s legal obligation is to pay, for example, for his children’s education, unless the court orders otherwise. It is not uncommon for a mother to have to advance payment for school fees, uniforms and textbooks. Since the mother has discharged the father’s legal obligation, she is entitled to claim reimbursement for it.

However, this is not a debt claimable in the Syariah courts for two reasons.

Firstly, there are no provisions in IFLA that allow a claim for reimbursement. Secondly, the basis for the claim is to be found in section 70 of the Contracts Act 1950, which provides as follows:

Reimbursement of person paying money due by another, in payment of which he is interested

70. A person who is interested in the payment of money which another is bound by law to pay, and who therefore pays it, is entitled to be reimbursed by the other.

Section 70, Contracts Act 1950

On the posed facts, W could claim for the education fees, textbooks and uniforms from H by way of a claim in the civil courts, not the Syariah courts. W is interested in H paying for the school fees, etc., which he is legally bound to do. Ergo, W may claim reimbursement against H for it.

The Husband’s Claims

IFLA’s scheme assumes a situation where the men work and women generally stay at home or do not earn enough to significantly contribute to the family finances. For this reason IFLA has no provisions that allow for a hubsand/ex-husband to claim maintenance or any money from the wife/ex-wife, even if the latter is wealthier or financially more stable than the former.

The husband may claim for custody, if he can successfully demonstrate the mother is disqualified from having custody as discussed earlier. The bar is very, very high to succeed. If he doesn’t get or want custody or joint custody, he has a right to visitation and a reasonable amount of time with the child during the weekends.

He can make a claim for harta sepencarian against the wife for properties in her name.

Summary

As we have seen, IFLA creates a framework of claims that reflects traditional gender roles while attempting to protect all family members. The asymmetry between the wife’s and husband’s potential claims is striking: wives may pursue maintenance (both iddah and arrears), mut’ah, custody, child support, and harta sepencarian, while husbands are primarily limited to harta sepencarian and custody claims—and face significant hurdles in the latter.

This imbalance stems from the classical Islamic legal understanding of marriage as involving complementary but distinct responsibilities, with financial provision being the husband’s domain and domestic care the wife’s traditional role. However, as Malaysian society evolves with increasing numbers of dual-income households and shifting family dynamics, questions arise about how well this framework accommodates contemporary realities.

While the fundamental principles of Shariah family law remain constant, their application continues to develop through judicial interpretation and occasional legislative amendments. Understanding these claims—their scope, limitations, and underlying principles—remains essential for Muslim couples navigating the difficult terrain of divorce in Malaysia, as well as for legal practitioners seeking to serve their clients effectively within this specialized legal framework.